Posts Categorized: Religious Freedom Restoration Act

Holt v. Hobbs is an odd case to come before the Supreme Court. It is a situation where each side has firmly dug its heels into the ground, and the kind of case that leaves non-lawyers shaking their heads about wasting taxpayer money. An Arkansas state prisoner, Adbul Maalik Muhammad (previously known as Gregory Holt) claims his religion requires him to eschew shaving, but is willing to compromise on a half-inch beard. The state of Arkansas, on the other hand, claims the prison system cannot function if prisoners are allowed to grow beards for religious reasons, but is willing to permit prisoners with skin conditions to grow quarter-inch beards. And so, on October 7th, this case made it all the way to the Supreme Court.

Such a case presents quite the dilemma for the Court. On the one hand, the Roberts Court has not been a friendly one to prisoner claims, with the conservative majority, for example, finding no need for reasonable suspicion to allow strip searches of prisoners. On the other, this court has been extremely solicitous of religious freedom cases. It ruled that a church school could designate its teachers as ministers, thus exempting them from employment discrimination laws, and the conservative majority famously ruled that corporations could claim religious exemptions to the requirement to provide health insurance for contraception. This case places those two trends in conflict.

At its core, this case is about way more than beards on prisoners. The central issue dominating oral arguments is the deference due to correctional staff regarding the necessary government interest. Muhammad sued under the Religious Land Use & Institutionalized Persons Act (RLUIPA). This law, along with the Religious Freedom Restoration Act (RFRA), sets a very high threshold for the government to meet in order to justify a “substantial burden” to a person’s exercise of religion. The government must show a compelling interest, and must advance it in the least restrictive manner possible. Judged by this standard, Arkansas’ case appears flimsy. It seems hard to justify how significant contraband can be concealed in a half-inch beard but not in a quarter-inch one. Or how a prisoner shaving off a half-inch beard can significantly change his appearance, thus posing a threat to prison security.

But Arkansas claims that courts must simply accept the word of the prison system as to what threatens security, the maintenance of which is clearly a compelling interest. Accepting this argument seems to dramatically undercut the intended protections of RLUIPA. If prison officials are to be believed, with no other evidence, that half-inch beards are a major threat to safety, and thus must be banned without exception, despite 40 other prison systems allowing them, what claim can succeed? The Court focused on this issue in questioning Arkansas’ attorney, with justices across the bench seemingly unconvinced that actual risks would follow allowing such a beard. Justice Breyer and Chief Justice Roberts noted that Arkansas had failed to show any actual harm anywhere in the country from such an exemption. Justice Alito questioned whether Arkansas’ policy was indeed the least restrictive means available, asking why the simple expedient of requiring an inmate to comb his beard would not suffice.

In questioning the Muhammad’s attorney, on the other hand, the Court showed concern that this case would not end litigation on this issue because prisoners will claim the right to grow longer beards. While Mohammad’s counsel noted that his client should not be penalized for being reasonable and offering to compromise on a half-inch beard, Justice Scalia suggested that the Court never should have taken the case, but instead should have waited for a case with a request to grow a full beard. The Court’s worry that it would be unable to craft an overall rule did not, however, appear to translate to an acceptance of Arkansas’ claim, described by Muhammad’s attorney as “absolute deference to anything they say just because they say it.”

As far as the tea leaves of oral argument can be read, the Court appeared overall sympathetic to the plaintiff and his request for a religious accommodation. The liberal wing, comprised of Justices Ginsburg, Sotomayor, Kagan and Breyer, was unconvinced that Arkansas had made the necessary showing of harm to override Muhammad’s religious convictions. These concerns were also shared by the more conservative justices, including Justice Alito, who challenged why the prison system could not accommodate this request by simple adjustments. Justice Scalia could not resist making clear he didn’t think RLUIPA was a good law (unsurprisingly, as it and RFRA were enacted by Congress to directly reverse his decision in Employment Division v. Smith). He noted that the text of the statute required a compelling government interest, so there would be no question of a reasonableness test to balance the interests of the prisoner and the prison system. What is certain, however, is that even if this prisoner is granted his exemption, this is not the last RLUIPA claim that will make it to the Court, and quite possibly not even the last beard case.

There was a time when the Religious Freedom Restoration Act (RFRA), the law at the base of the Hobby Lobby and Conestoga Wood Specialties contraception mandate cases at the Supreme Court, appeared shiny and noble. It was all about our beloved American religious liberty. As it turns out, though—and these cases have made clear—it is in fact a black box.

And who delivered this shiny black box to us? Congress, which blindly trusted religious lobbyists—specifically the self-named Coalition for the Free Exercise of Religion—to be honest about religious liberty doctrine, the state of religious liberty across the country, and their true intentions if RFRA passed. Yet, the Coalition was not forthcoming about any of these.

Congress leapt to be our religious savior by enacting RFRA, instead of asking the obvious question of the religious lobbyists: so what laws do you intend to break? Read more

On March 25, the Supreme Court will hear oral arguments on two high-profile challenges to the Affordable Care Act’s contraceptive coverage guarantee, which requires most private health plans to cover the full range of women’s contraceptive methods and services, without patient out-of-pocket costs. These cases, Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius, were initiated by for-profit corporations and their owners asserting religious objections to coverage of and counseling and education about specific contraception methods (emergency contraceptive pills and intrauterine devices) that they claim cause abortion.

The cases involve complex legal claims, including challenges under the First Amendment’s protection for religious exercise and the Religious Freedom Restoration Act of 1993. However, there are also central questions of fact—many of which may seem self-evident—that have been subject to misinterpretation and obfuscation. The Guttmacher Institute has writtenextensivelyabout the policy and submitted an amicus brief laying out many of these facts. Notably:

Contraception is not abortion. Numerous medical associations made this fact clear to the Court by describing the science of how pregnancies are established and the most up-to-date evidence of how contraception works. And indeed, evidence from the United States and abroad helps show the obvious: that by preventing unintended pregnancies, effective contraceptive use reduces the need for abortion. For example, publicly supported family planning services helped U.S. women prevent 760,000 abortions in 2010 alone; without such services, the U.S. abortion rate would have been two-thirds higher.

Contraceptive use benefits women and families. The government has a strong interest in promoting contraceptive use because it enables women and couples to prevent unplanned pregnancies and to plan and space those they do want. That, in turn, has real health benefits: It decreases pregnancy-related illness, injury and death; reduces the chances of premature and low-birth-weight deliveries; and is linked to improved prenatal care and breast-feeding. Moreover, according to numerous studies and to women themselves, contraceptive use enables women to complete their education, get and keep a good job, support themselves and their families financially, and invest in their children’s future.

Contraceptive methods are not interchangeable. Methods of contraception differ dramatically in their effectiveness. Moreover, women’s contraceptive needs and choices are influenced by concerns about side effects and drug interactions, how frequently they expect to have sex, their perceived risk of Sexually Transmitted Infections (STIs) and a host of other factors. Women who are not completely satisfied with their choice of a method are particularly likely to use it inconsistently or incorrectly, or to experience gaps in use. For these reasons, women need access to not just any method of contraception, but to the one most suitable for their individual needs and circumstances.

Insurance coverage improves use. Cost is a substantial barrier to women’s ability to choose and use the best method for them. Highly effective methods, such as IUDs, implants and sterilization, are ultimately cost-effective, but entail high up-front costs. Even for the pill, uninsured women on average pay $370 for a full year’s supply; that is the equivalent of 51 hours of work for someone making the federal minimum wage of $7.25. So, it is no surprise that one-third of women would switch methods if they did not have to worry about cost. Removing cost barriers—as the federal policy requires, for contraception and dozens of other effective preventive care services—has been proven to make a substantial difference in facilitating access to and use of needed care.

Counseling and education matter. In fact, the plaintiffs in these cases object not only to specific contraceptive methods but also to counseling and education involving those methods. Put into practice, that might mean a gag rule: a ban on talking with one’s doctor about the full range of contraception options, if the office visit is to receive any insurance reimbursement. That would undermine women’s ability to choose the method they will use most effectively. More broadly, it would have serious repercussions for the health provider-patient relationship and for women’s ability to give informed consent for their care.

In sum, the scientific evidence strongly supports the current federal policy on contraceptive coverage. Its benefits are tangible and substantial, and thus the employees and their family members who depend on these companies for their health insurance have a great deal to lose if their employers get their way.

Moreover, the Supreme Court’s decision could have consequences far beyond contraception. For example, there are many important coverage guarantees included in the Affordable Care Act and federal law more broadly. Employers might claim religious objections to coverage—for everyone or, for instance, for those who are young, unmarried or gay—of HPV vaccination, STI testing, breast-feeding equipment, maternity care, blood transfusions, HIV medication and mental health care.

So, it’s not only women and couples in need of contraceptive care who should be worrying about the outcome of these cases; new rights for employers that override the rights and needs of their employees should worry us all.

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AIDS United is a national organization dedicated to the development, analysis, cultivation, and encouragement of sound policies and programs in response to the HIV epidemic. Through the dissemination of information and the building and use of advocacy on behalf of all those living with and affected by HIV, AIDS Action has been instrumental in the development and implementation of major public health policies to improve the quality of life for the estimated 850,000 – 900,000 Americans who are HIV positive.